County man files federal civil rights suit against sheriff’s offices in Nevada, Placer, Sacramento counties
May 3, 2014
A Nevada County resident has filed a civil rights lawsuit in federal court alleging a bizarre conspiracy perpetrated by three county law enforcement agencies, with the purpose of deterring the plaintiff from complaining further after he was allegedly mistreated during a routine traffic stop and subsequent arrest.
Richard Malott, 44, said, in a complaint filed in the U.S. District Court in Sacramento on Monday, that Sacramento County Sheriff's deputies abused him after arresting him on a charge of illegally carrying a concealed weapon on April 25, 2013, by failing to provide access to medical care.
The complaint further alleges that law enforcement officials illegally confiscated Malott's diary, which was located in the car during a search, and launched an investigation into Malott's personal activities that entailed calling associates and divulging parts of the diary, and allegedly fabricating other parts of it to make Malott appear like a deviant criminal and to encourage associates to pursue restraining orders and criminal complaints.
"It's pretty high up on the weird list," said Stewart Katz, Malott's lawyer. "It's just really bizarre."
The complaint alleges members of the Placer County Sheriff's Office visited Malott's property without a warrant on several occasions during a period dating from Aug. 13-21, 2013 in an attempt to "physically intimidate" Malott and discourage him from pursuing his complaints.
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The complaint names Nevada County Sheriff Keith Royal, saying he and others in his department assisted in a cover-up by ignoring the illegal actions of the other two agencies and improperly failing to respond to a subpoena that summoned the sheriff to a restraining order hearing involving Malott.
Repeated calls to the SCSO public information officer Tess Deterding were not returned; she did respond to emails previous to the filing of the federal suit, declining to provide copies of the police report or access to the video surveillance recordings, which would also have audio components.
"Due to the pending litigation in this matter, the department must decline to make a statement regarding Mr. Malott's allegations," Deterding said in an email earlier this year. "Furthermore, in the interest of the pending litigation, the department must decline to provide any evidence in this case. The Sheriff takes pride in being transparent and we are confident that, at the appropriate time, the facts will show there was no misconduct on the part of our deputies."
Placer County Sheriff's Office spokeswoman Dena Erwin confirmed PCSO deputies were dispatched to Malott's residence in Nevada County, but said it was for a civil matter pertaining to a restraining order filed against Malott by a former girlfriend.
Erwin attributed subsequent visitations by PCSO deputies to promptings by the District Attorney's office, however, Martha Brown, an administrative clerk for the DA's office, said "our office has no involvement in the matter" in a subsequent email.
Royal said NCSO was not involved in the Malott investigation, saying it is often a matter of courtesy to allow neighboring agencies to pursue investigations across jurisdictional boundaries.
"That is not unusual," Royal said. "We are not going to follow up on their cases."
The entire lawsuit stems from a traffic stop on April 25, 2013, when Malott allegedly rolled through a stop sign in Fair Oaks, Calif. Upon being stopped, Malott was found to be in possession of a .22 caliber Derringer handgun after a search by two deputies, Javier Bustamante and Darin Epperson.
After Malott revealed he did not have a permit for carrying a concealed weapon, he was arrested on a misdemeanor and placed in the back of the car, according to the complaint. While in the backseat of the deputies' vehicle, Malott reportedly began to complain about physical distress, including chest pains, pain in his left arm, nausea, lightheadedness and other symptoms consistent with a cardiac event.
The complaint not only alleges that Bustamante and Epperson ignored Malott's plea for urgent medical care, but they engaged in activities "akin to kicking away crutches to see if they fall down."
The activities reportedly included, but were not limited to, administering a pain compliance technique called a "sternum rub," which is when officers use a small pointed stick called a Kubotan to apply pressure to the chest.
"Bustamante used the object against Malott's sternum a second time, pushing even harder and more forcefully for another 10 to 25 seconds, causing great pain and bruising," the complaint reads.
Finally, after reportedly ascertaining that Malott was possibly experiencing a real medical event, the officers called an ambulance and Malott was admitted to a hospital for overnight monitoring before being released the next day, the lawsuit states. After reporting the injuries he allegedly received to the medical staff, still photos and video documentation of those injuries were taken.
Had the story ended here, it would have been "routine, sort of, in its own way," Katz said. "But this is where it becomes odd."
During Malott's arrest, Bustamante and Epperson removed a red hardcover book labeled "Daily Reminder Standard Diary" and began rifling through it, the complaint alleges.
The deputies allegedly handed the diary off to two Sacramento County Sheriff's detectives, Matt Hardcastle and Michelle Hendricks.
Malott claims the diary has nothing in it that would indicate criminal conduct, but instead are typical diary entries filled with ruminations and descriptions of day-to-day activities.
However, Hendricks and Hardcastle allegedly began to call associates of Malott's listed in the diary, including an ex-girlfriend and a longtime friend, and made gross mischaracterizations of the contents of the diary to those contacted.
"Defendants Hendricks and Hardcastle conducted separate interviews during which each published the contents of Malott's diary and relayed false, erroneous or fictional information regarding Malott which placed him in a false light," the complaint reads.
The complaint further accuses Hendricks of asking questions meant to imply that Malott engaged in sexual perversion, cross-dressing, and human trafficking and may have had addictions to alcohol and gambling. It alleges Hendricks engaged in witness coaching and claimed that Malott was found with a rape kit during the traffic stop that occurred in April, a claim that Katz categorically refuted, saying "there is not a scintilla of evidence that Malott ever planned, intended, attempted or even fantasized about kidnapping or raping anyone."
The complaint alleges that Hendricks' and Hardcastle's interactions with the two women were "with the specific purpose of encouraging either to initiate a legal action against Malott."
Katz said the case becomes even more bizarre after one of the women took out a restraining order against Malott, though that woman said she initiated the process prior to his April 2013 arrest.
After Malott unsuccessfully contested the restraining order, Placer County sent Sheriff's deputies out to Malott's property in Nevada County for what they reportedly told Katz amounted to a "threat assessment."
"The purpose of this visit was reportedly to speak with Malott, but in reality, to threaten Malott that there would be further consequences to his complaining about Placer County officials," the complaint alleges.
The complaint also states that Placer County specifically selected a deputy who was listed as 6 feet, 3 inches and approximately 300 pounds, and on at least one of the occasions he wore SWAT gear that was lacking appropriate indicia.
During one of these incidents, on Aug. 16, 2013, Malott called the Nevada County Sheriff's Office dispatch to report two unidentified officers in SWAT gear were at his residence, according to documents obtained from the NCSO.
With the second incident, occurring on Aug. 21, 2013, Malott called dispatch, saying four armed officers were trespassing on his property and he had advised members of his ranch to arm themselves, according to documents.
The call led to "an unusual confrontation between six NCSO deputies and the PCSO interlopers which was later explained away in NCSO documentation as a 'failure to communicate' between the sheriff's departments," the complaint states.
"At first, I had trouble believing any of this," Katz said in an interview. "But the more I looked into it, the more I found independent corroboration."
Katz said that Malott filed government tort claims against all three agencies and after being summarily denied and rebuffed by the Internal Affairs division of the SCSO, his only recourse was to pursue a civil case.
Katz is a Sacramento-based attorney who is well-known for pursuing cases against law enforcement agencies.
In 2011, the Sacramento Bee called Katz "a hated man among law enforcement agencies" because he bombards them with civil rights cases. The Sacramento News and Review once listed him among the city's most intriguing people and said he is best known "as the lawyer who sues cops."
Sacramento County Sheriff's Deputy Javier Bustamante, who is accused in Malott's complaint of using inappropriate force against the plaintiff and refusing medical care, was involved in a wrongful death suit that dates back to an Oct. 15, 2008 incident where Bustamante fatally shot Damion McMurray at an apartment complex in Rio Linda.
Valetta McMurray, Damion McMurray's mother, witnessed the incident and brought a wrongful death suit against Bustamante and Sacramento County. The case was settled out of court.
According to Sacramento County Superior Court, Malott currently faces felony charges of carrying a concealed weapon and carrying a loaded firearm. His case is scheduled for a settlement conference on Tuesday.
Matthew Renda and Christopher Rosacker are former staff writers for The Union.